JIPEL Vol. 7 – No. 1

The NYU Journal of Intellectual Property and Entertainment Law is proud to present Volume 7 Issue 1 of the Journal. While PDFs of the individual articles may be found accompanying their respective posts, you may view and download a PDF of the complete issue here

In Glatt v. Fox Searchlight Pictures Inc., the Second Circuit established a new
test — the “primary beneficiary&r dquo; test — for determining when
unpaid internships may be provided by employers. In doing so, the Second Circuit rejected
a strict “all–or–nothing“ six–factor test from the Department
of Labor, and held that unpaid internships do not offend the Fair Labor Standards Act so
long as the intern, and not the employer, is the “primary beneficiary” of the employment
relationship. This Note primarily argues that the “primary beneficiary” test is superior
to the rigid test proposed by the Department of Labor. This is because the “primary
beneficiary” test provides a practical, flexible, and well– approach in analyzing the
totality of the employee–intern relationship, thereby allowing employers to continue to provide
meaningful unpaid opportunities while providing adequate safeguards from exploitation. In making
this conclusion, this Note analyzes the problem through the lens of the entertainment industry,
where unpaid internships are often a prerequisite to finding fulltime employment.

The potential anticompetitive sequences of standard essential patents have been identified by the European Commission as a key area of policy formulation for the Internet of Things. Throughout the process of policy formulation, the input of young innovative companies may require additional consideration as illustrated by the series of thirty-one in-depth interviews undertaken with key figures in young innovative companies (YICs) across Europe. The information gathered shows that that the way the E.C. conceptualized the policy issues at stake is not wrong, but may be incomplete. While it is important to promote a better understanding of what the FRAND promise entails, young innovative companies showed a remarkable disconnect to the patent system as a whole. They not only lacked intellectual property awareness, but many also thought that the Internet of Things could be helped by open source software, rather than a standard essential patents regime. Against this background, this study strongly encouraged the European Commission to better integrate young innovative companies in the process of patent policy formulation. The fair, reasonable and non-discriminatory (FRAND) guideline the Commission issued at the end of November 2017, reflected the findings of this study by recognizing the need to raise FRAND awareness among YICs and SMEs (Small and Medium Sized Companies).
Keywords: Internet of Things, patents, standards, FRAND, European Union policy, competition, young innovative companies, governance, patent policy

Since 1980, a series of legislative acts and judicial decisions have affected the ownership, scope, and duration of patents. These changes have coincided with historic increases in patent activity among academic institutions.
This article presents an empirical study of how changes to patent policy precipitated responses by academic institutions, using spline regression functions to model their patent activity. We find that academic institutions typically reduced patent activity immediately before changes to the patent system, and increased patent activity immediately afterward. This is especially true among research universities. In other words, academic institutions responded to patent incentives in a strategic manner, consistent with firm behavior, by reacting to the preferences of internal coalitions to capture unrealized economic value in intellectual property.
University patent activity, as a response to patent law changes, carries important economic and normative implications. The patent system uses private economic incentives to promote innovation, but academic institutions are charitable organizations intended to promote the public good. This study demonstrates that patent incentives may have encouraged academic institutions to invest in patentable innovation—in ways that potentially limit access to innovation—in order to internalize private economic value.

Patent working requirements exist throughout the world
to ensure that the exclusive rights granted through patents result in an
economic benefit to the granting jurisdiction. In India, if a patent is not
locally worked within three years of its issuance, any person may request a
compulsory license, and if the patent is not adequately worked within two years
of the grant of such a compulsory license, it may be revoked. The potency of
India’s patent working requirement was demonstrated by the 2012 issuance of a
compulsory license for Bayer’s patented drug Nexavar. In order to provide the
public with information about patent working, India requires every patentee to
file an annual statement on “Form 27” describing the working of each of its
issued Indian patents.
We conducted the first comprehensive and systematic
study of all Forms 27 filed in India with respect to a key industry sector:
mobile devices. We obtained from public online records 4,916 valid Forms 27,
corresponding to 3,126 mobile device patents. These represented only 20.1% of
all Forms 27 that should have been filed and corresponded to only 72.5% of all
mobile device patents for which Forms 27 should have been filed. Forms 27 were
missing for almost all patentees, and even among Forms 27 that were obtained,
almost none contained useful information regarding the working of the subject
patents or fully complying with the informational requirements of the Indian
Patent Rules. Patentees adopted drastically different positions regarding the
definition of patent working, while several significant patentees claimed that
they or their patent portfolios were simply too large to enable the reporting
of required information. Many patentees simply omitted required descriptive
information from their Forms 27 without explanation.
It is likely that a
combination of factors have led to this high degree of non-compliance, namely
technical and administrative failures of the Indian Patent Office, and
inadvertent or deliberate omissions by patent holders. However, it is also
likely that there are more fundamental issues concerning the very notion of
working requirements with respect to complex, multi-patent products. In effect,
products that embody dozens of technical standards and thousands of patents may
not necessarily be amenable to individual-level reporting of working, or even working
requirements themselves. We hope that this study will contribute to the ongoing
global conversation regarding the most appropriate means for collecting and
disseminating information regarding the working of patents.